An annuity bestowed by will, without mentioning any time of payment, is considered as commencing at the death of the testator, and the first payment as due at the expiration of one year; from which latter period interest may be claimed in cases where it is allowed at all.[176]
The rule as to interest being reckoned on a specific legacy from the death of the testator was strictly applied in the case of Churchill v. Speake,[177] where a testator made a specific bequest of a mortgage for £1,000 to his wife, and desired her to give the sum of £500 to M C, his grandchild; “but, for the time and manner of doing it, I leave it freely to herself, and as she shall see it best for her”; and the wife exercised this freedom so well as to live twenty years after the testator, and never paid the £500; and the court decreed payment of it to M C, with interest from the testator’s death.
The inquiry to whom legacies are to be paid is one of great importance to the executor, who must be careful to pay legacies into the hands of those who have authority to receive them. It is a general rule that, where the legatee is an infant, and would be entitled to receive a legacy if he were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity.[178] And even in the case of a child who has attained majority, payment to the father is not good, unless it be made by the consent of the child, or confirmed by his subsequent ratification. It may happen that an executor has, with the most honorable intentions, paid the legacy to the father of the infant; nevertheless, he will be held liable to pay it over again to the legatee on his coming of age. And although such cases have been attended with many circumstances of hardship to the executor, yet he has been held responsible, on the policy of obviating a practice so dangerous to the interests of infants, and so naturally productive of domestic discord.[179]
Many of our States regulate the payment of legacies to infants by statute, as in New York, where a legacy of $50 may be paid to the father of the legatee, to the use and for the benefit of such minor; but, if it exceeds $50, it must be paid to the general guardian of the infant, who will be required to file a bond to pay it over to the infant.[180]
It was formerly the law that, if a legacy was given to a married woman, it should be paid to the husband. So, where a legacy was given to a married woman living separate from her husband, with no maintenance, and the executor paid it to the wife, and took her receipt for it; yet, on a suit instituted by the husband against the executor, he was decreed to pay it over again, with interest.[181] It was also adjudged that, if the husband and wife were divorced a mensa et thoro, and a legacy was left to her, the husband alone could give a proper receipt for it, and consequently to him alone was it payable.[182]
But now, by statutes in almost all of our States, a married female may take by devise and bequest, and hold to her sole and separate use, real and personal property, or any interest or estate therein, in the same manner, and with the like effect, as if she were unmarried.
Section 5.—The Person who may Take.
The only person generally disqualified to receive a legacy is the witness to a will. The law has thought fit to guard a deceased from all imposition, and it is thought if a person took any beneficial interest under a will to which he was one of the witnesses, he could not be a disinterested person to attest its due execution.
In New York, he is disqualified, if such will cannot be proved without his testimony;[183] and, in a case on this head, Caw v. Robertson,[184] where there were three witnesses to the will, each of whom took legacies under it, the Surrogate called the first two, whose names appeared first, which were sufficient, and omitted calling the third. It was decided that he only became entitled to the legacy, as the will could be proved without his testimony.
An executor is not disqualified from receiving a legacy; but in his case, it seems, it will not carry interest.[185]